Thomson-Houston Electric Co. v. Palmer
| Decision Date | 10 January 1893 |
| Citation | 53 N.W. 1137,52 Minn. 174 |
| Parties | Thomson-Houston Electric Co. v. Frank E. Palmer et al |
| Court | Minnesota Supreme Court |
Argued December 22, 1892
Appeal by plaintiff, Thomson-Houston Electric Company, from an order of the District Court of Ramsey County, Otis, J., made August 5, 1892, granting defendant a new trial.
The Thomson-Houston Electric Company, a corporation, sold between December 1, 1888, and April 13, 1889, to Frank E. Palmer and J. F. Thompson, partners in business, merchandise to the value of $ 9,084. On the last-named day they gave to plaintiff therefor, two notes for $ 4,542 each, made by J. F Thompson and indorsed by Frank E. Palmer, one due in six and the other in twelve months, with eight per cent. interest payable at Fort Dearborn National Bank, Chicago, Illinois. When the first note fell due it was paid. When the other fell due J. F. Thompson delivered to the plaintiff a note of the Oswego Water Supply Co., of Kansas, for the amount and certain bonds as collateral security for its payment. This note was not paid in full, and on October 19, 1891, the plaintiff brought this action upon the original account for merchandise sold, claiming a balance of $ 2,834 and interest and offered to surrender the note and collateral bonds. Frank E. Palmer was served, but J. F. Thompson was not found. Palmer answered that the two notes of Thompson were taken in payment and satisfaction of the account, and the one not paid was renewed, and payment deferred, without his assent.
The issues were tried June 14, 1892. After proving the account plaintiff rested. Defendant proved the execution in Missouri and delivery at Chicago, Ill., of the two notes, each for $ 4,542, in settlement of the account. He also offered in evidence the printed official reports of cases adjudged in the Illinois courts as follows: Fridley v. Bowen, 5 Bradwell, 191; Morrison v. Smith, 81 Ill. 221; White v. Jones, 38 Ill. 159; Gage v. Lewis, 68 Ill. 604; Anderson v. Armstead, 69 Ill. 452; Yates v. Valentine, 71 Ill. 643; Kappes v. George E. White Hard Wood Lumber Co., 1 Bradwell, 280; Smalley v. Edey, 19 Ill. 206; Ralston v. Wood, 15 Ill. 159; Hoodless v. Reid, 112 Ill. 105; Cox v. Keiser, 15 Bradwell, 432; Walsh v. Lennon, 98 Ill. 27; Wilhelm v. Schmidt, 84 Ill. 183.
On objection by plaintiff, these reports were excluded, and the defendant excepted. The court charged the jury that the taking of the notes was not payment of the account. Plaintiff had a verdict for $ 3,453.42. The defendant Palmer moved for a new trial, and the court granted it. Plaintiff appeals.
Order affirmed.
F. B. Wright, for appellant.
The court will not take judicial notice of the law of a sister state or presume that it is in any way different from the law of this state. Such law must be pleaded by the party relying thereon, before he can prove it. Hoyt v. McNeil, 13 Minn. 390; Hunt v. Johnson, 44 N.Y. 27; Hanley v. Donoghue, 116 U.S. 1; Evans v. Reynolds, 32 Ohio St. 163; Ellis v. Maxson, 19 Mich. 186; Dainese v. Hale, 91 U.S. 13; Scudder v. Union Nat. Bank, 91 U.S. 406; Roots v. Merriwether, 8 Bush, 397.
Plaintiff contends that the Illinois law, even if it had been properly pleaded, was incompetent and immaterial. The bill of exceptions discloses no contract, express or implied, as to whether the notes were taken in payment of the existing debt or otherwise. Geib v. Reynolds, 35 Minn. 331; Combination S. & I. Co. v. St. Paul City Ry. Co., 47 Minn. 207.
The defendant claims that the notes were taken and made payable in the state of Illinois, and that by the law of that state, it is presumed that the notes were taken in payment of the debt. Is this a right as contradistinguished from a remedy? If a right, then the lex loci contractus must govern. If a remedy, then the lex fori. The lex fori governs whether a witness is competent or not, whether a matter is required to be proved by a writing or not, whether certain evidence proves a fact or not. These are to be determined by the law of the country where the remedy is to be enforced, and where the court sits to enforce it. Bain v. Whitehaven & F. J. Ry. Co., 3 H. L. Cas. 1; Yates v. Thomson, 3 Cl. & Fin. 544; Downer v. Chesebrough, 36 Conn. 39; Hoadley v. Northern Transp. Co., 115 Mass. 304; Wilcox v. Hunt, 13 Pet. 378; Bank of U. S. v. Donnally, 8 Pet. 361.
It is not the law of Illinois as shown by the adjudicated cases that the taking of a promissory note for an existing debt is prima facie payment of that debt. White v. Jones, 38 Ill. 160; Archibald v. Argall, 53 Ill. 307; Rayburn v. Day, 27 Ill. 46.
Samuel A. Anderson, for respondent.
It is the law of Illinois that where the debtor's own negotiable note is taken for an existing account or debt, it is prima facie evidence of payment of the account or debt. See the cases offered in evidence at the trial. Cornwall v. Gould, 4 Pick. 444; Barclay v. Gooch, 2 Esp. R. 571; Thacher v. Dinsmore, 5 Mass. 299; Huse v. Alexander, 2 Met. 157; Melledge v. Boston Iron Co., 5 Cush. 158; Fowler v. Ludwig, 34 Me. 455; Dickinson v. King, 28 Vt. 378; Collamer v. Langdon, 29 Vt. 32.
This action was brought on an account for goods, wares, and merchandise sold and delivered in Chicago, Ill., by plaintiff to defendant and one Thompson. Thompson was a nonresident, and was not served with process, and never appeared, so that the action proceeded against Palmer alone. His principal defense was that the account had been paid by promissory notes executed by Thompson and indorsed by himself, and which he alleged plaintiff received and accepted as payment of the account. The giving and receiving of the notes for the amount of the account (a pre-existing debt) was not disputed.
Although casually signed in Missouri, the notes were delivered and were payable in Illinois; and it is not questioned but that they were Illinois contracts, and, as respects their nature and obligatory force, governed by the laws of that state; the only contention being as to whether the law of that state or that of Minnesota applied in determining whether they operated to pay and extinguish the original debt.
On the trial there was no evidence of an express agreement, one way or other, on the subject, and no circumstances (at least none favorable to plaintiff) from which any agreement could be implied, unless it was the mere fact that the notes had been given and received. Upon the motion for a new trial the court below, contrary to his rulings on the trial, held that the law of Illinois applied; and that the law of that state, differing from that of Minnesota, was that, in the absence of any agreement of the parties to the contrary, the giving and receiving of the debtor's promissory note for a pre-existing debt due on simple contract constituted payment and extinguishment of the original debt. As the evidence as to the law of Illinois consisted entirely of the judicial opinions of that state, the question of their construction and effect was one for the court alone. Di Sora v. Phillipps, 10 H. L. Cas. 624; Kline v. Baker, 99 Mass. 253.
Neither is there anything in plaintiff's point that the law of Illinois should have been specially pleaded. Having pleaded payment, the defendant was entitled to introduce evidence of any facts tending to prove that plea. The rule, of course, is that courts will not take judicial notice of the laws of another state or country, differing from our own, but that they must be pleaded and proved the same as any other facts. But this rule does not require such laws to be pleaded when they consist of mere matters of evidence. They stand on the same footing as any other fact, to be pleaded only when they are issuable, as distinguished from probative or evidential facts.
It is urged that the trial court misconstrued the judicial decisions of Illinois, and that in fact the law of that state is the same as that of Minnesota. In determining this question we have necessarily had to confine our consideration to the particular decisions introduced in evidence. As the court below very correctly remarked, if the law of that state was to be determined by the obiter dicta in the numerous decisions of its courts, there might be very grave doubt and uncertainty as to what the law of Illinois is.
This is shown by the fact that several of their decisions are cited, carelessly perhaps, by text writers, as authority for the common-law rule which obtains in this and most of the other states; and we are by no means certain what the courts of that state will decide the law to be when they are squarely confronted with the question after full argument. But, like the court below, we think that White v. Jones, 38 Ill. 159, lays down what is often called the "Massachusetts rule," and is an authority in favor of defendant's contention, and that, keeping in mind the difference in the facts, and the distinction between what was essential to the decision of the respective cases and what is mere dictum, this case is not overruled by Wilhelm v. Schmidt, 84 Ill. 183.
We therefore conclude that the law of Illinois is that the taking of the debtor's promissory note for a pre-existing debt is prima facie payment,...
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